The Oklahoma Bar Journal October 2026

As Justice Scalia rightly observed, constitutional guarantees of liberty are of little value unless secured by a governmental structure which divides power broadly.

structure which divides power broadly. Only an adherence to formalism can preserve that division. While formalism will occasionally produce intergov ernmental conflict, the Oklahoma Constitution was deliberately designed to achieve this end. “[B]y means of the inevitable fric tion” between the three branches, the Constitution “save[s] the people from autocracy.” 38 If the separation of powers can be evaded in the name of efficiency, then the Constitution’s guarantees of liberty “would be at the mercy of ingenious efforts to circumvent [their] objects and to defeat [their] commands.” 39 Functionalism encourages such creative attempts rather than forestalls them. To preserve the Constitution’s structure – and the liberty it secures – the Supreme Court should express what it has long made apparent: formal ism is the only constitutionally faithful approach to addressing Oklahoma’s separation of powers.

applied in a single reported case since it was announced. A recent case involving the governor’s power over state-tribal relation ships underscores this shift. In Treat v. Stitt , 35 the court invalidated the governor’s attempt to unilat erally expand tribal gaming. In so holding, the court noticeably did not invoke the multi-factor test. Instead, the Treat court focused on each branch’s formal role: the Legislature makes the law while the governor carries it out. 36 The Treat case, together with vari ous other separation of powers decisions over the previous two decades, suggests the court has qui etly moved towards formalism. 37 While this apparent shift is a wel comed one, functionalism still tech nically governs such matters. This mixed messaging creates needless doctrinal confusion which can only be remedied by the court clearly stating its preferred approach. PRESERVING THE CONSTITUTION’S STRUCTURAL SAFEGUARDS As Justice Scalia rightly observed, constitutional guaran tees of liberty are of little value unless secured by a governmental

ABOUT THE AUTHOR John Tyler Hammons is an attorney in Muskogee and a founding partner at Hammons Hamby & Price, who represents municipalities and other governmental clients. Mr. Hammons is a sixth generation Oklahoman and an enrolled citizen of the Cherokee Nation. He previously served as the 47th mayor of Muskogee, and he currently serves as the attorney general for the sovereign Kaw Nation, city attorney for multiple cities, and presides as the chief municipal judge in Muskogee. 1. Scalia, Antonin, “Opening Statement on American Exceptionalism to the Senate Judiciary Committee,” Oct. 5, 2011. Available at: https://bit.ly/46ohw8T. Last accessed on March 3, 2026. 2. Id . 5. State v. Lynch , 1990 OK 82, 796 P.2d 1150, 1167. 6. Jones v. Freeman , 1943 OK 322, 146 P.2d 564, 573. 7. In re Cty. Comm’rs of Ctys. Comprising Seventh Judicial Dist ., 1980 OK 207, 98 P. 557, 561. 3. 2002 OK 74, 64 P.3d 546. 4. 2003 OK 105, 82 P.3d 1000. ENDNOTES

8. OKLA. CONST. Art. V, §1. 9. OKLA. CONST. Art. VI, §1. 10. OKLA. CONST. Art. VII, §1.

11. Because the Legislature had the exclusive right to appoint subordinate legislative officers ( Riley v. State , 1914 OK 251, 141 P. 264), it follows the governor had the exclusive right to appoint subordinate executive officers as well.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL